Wen (Migration)

Wen (Migration) [2019] AATA 1833 (4 June 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Lu Wen
CASE NUMBER:  1806392
HOME AFFAIRS REFERENCE(S):           BCC2018/254116
MEMBER:Vanessa Plain
DATE:4 June 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Statement made on 04 June 2019 at 1:39pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – poor study record – motivation for undertaking study in Australia – regression in level of study – value of course – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 500.212, 500.311

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 19 February 2018 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 16 January 2018. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations).
The applicant appeared before the Tribunal on 4 June 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant is a genuine temporary entrant.
Clause 500.212 requires as follows:
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i)the applicant’s circumstances; and
(ii)the applicant’s immigration history; and
(iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv)any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c)of any other relevant matter.
Does the applicant intend genuinely to stay in Australia temporarily?
In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s.499 of the Act. This Direction, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:
·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
The applicant is a Chinese female, who came to Australia on 16 November 2014 holding a TU 573 student visa. Since that time, the applicant has been granted another TU 573 student visa. On 16 January 2018, the applicant applied for a third student visa, which was refused by the delegate for the reasons set out in the delegate’s decision record dated 19 February 2018.
The applicant prior to entering Australia completed a Higher National Diploma in Business in China.
Since arriving in Australia, the applicant’s study history and her evidence at hearing in relation to her studies, is as follows:
(a)The applicant completed an English course in May 2015
(b)The applicant failed to complete a Bachelor of Commerce, which was cancelled by her education provider in July 2016. The applicant said she found the course too difficult
(c)The applicant failed to complete a Bachelor of Business, which was cancelled by her education provider in August 2017. The applicant said she didn’t finished due to being in bad health at the time
(d)The applicant failed to complete a Diploma of Business, which was cancelled by her education provider in November 2017. The applicant said she thought this course would be easier than the Bachelor degrees, but it was not
(e)The applicant enrolled in a Certificate II in Commercial Cookery which she did not complete
(f)The applicant enrolled in a Certificate IV in Commercial Cookery scheduled to commence on 20 May 2019 and conclude on 1 November 2019 which she never commenced due to changing her mind about studying this course
(g)The applicant is currently enrolled in a Diploma of Hospitality Management which commenced on 8 April 2019 and will conclude on 7 April 2020. The applicant stated that her decision to undertake this course is the reason she did not commence the Certificate IV in commercial cookery
The Tribunal has had regard to the applicant’s circumstances in her home country. The applicant gave evidence that:
·    The quality of education in China compared to Australia for her course is not as good, because in China the course providers aren’t family with western food.
·    Her health has impeded her studies in Australia and she doesn’t go to class often because of her health.
·    The applicant’s parents are in China, she is an only child and her father runs a company in China. She had been home many times over the years since arriving in Australia, mainly due to her poor health.
·     She does not work in Australia, she lives alone and her parents support her financially.
The Tribunal is unable to find that the applicant has sound reasons for not undertaking study in her own country. The applicant has a poor study record in Australia, despite being in Australia since 2014 and enrolling in all the courses described in paragraph 12, she has failed to successfully complete any studies, save for the initial English course. This leads to the conclusion her motivation to remain in Australia is not for the purpose of undertaking studies. The Tribunal accepts on the evidence that the applicant has suffered health issues, however, the Tribunal is not satisfied that the applicant’s health issues were of a serious enough nature to contribute to her complete academic failure as set out above.
The Tribunal is unable to find that the applicant has significant enough personal ties to her home country such that would motivate her to return there after her studies. The Tribunal places some weight on the fact that her parents are in China, however, the Tribunal places greater weight on the fact that the applicant has been in Australia since 2014 without completing a course of study, save for the English course, as a factor which suggests she does not intend to stay in Australia temporarily.
The Tribunal finds that the applicant has little economic incentive to return home. The Tribunal makes this finding based on the fact that she is supported by her parents financially to remain in Australia, despite very poor academic progress in circumstances where she does not have a job in Australia. There is no evidence before the Tribunal that the applicant will return home to paid employment. Rather, the applicant gave evidence that she wants to open a café in China when she returns home.
There is no evidence before the Tribunal of military service commitments or political or civil unrest that would prevent the applicant from returning home and the Tribunal makes no finding against the applicant in this regard.
The Tribunal has had regard to the applicant’s potential circumstances in Australia. The applicant gave evidence that:
·She lives alone in rented premises in Camberwell.
·Outside of study, she cooks and reads in her recreational time.
·She became aware of her current course through the advice of her migration agent.
·She has commenced and failed to complete a string of courses as outlined above.
The Tribunal is of the view that the applicant’s ties with Australia present as a strong incentive to remain in this country. This finding is based primarily on the fact that the applicant has failed to complete every course she has enrolled in, save for the English course, since being in Australia. This leads to the conclusion the student visa is being used to maintain residence in Australia. Further, the fact that the applicant was originally enrolled in university level studies and has recently downgraded her enrolment to low level vocational courses without any credible explanation for the change, suggests she is using the student visa to maintain ongoing residence. Further, the Tribunal is unable to find that the applicant has undertaken any independent research into her proposed course, being solely advised of it by her migration agent. These factors in their totality lead the Tribunal to the conclusion that the applicant is using the student visa program to circumvent the intentions of the migration program and maintain ongoing residence in Australia. There is no evidence before the Tribunal of the applicant being in any contrived relationship.
The Tribunal has had regard to the value of the course to the applicant’s future. The applicant gave evidence that:
·She wants to open a café or restaurant when she returns to China
·She says the rent for such a venture would be 30,000 to 50,000 RMB per month and she would like to hire 5 to 7 staff in the business.
At the time of decision, the applicant has not completed any studies that would assist her in working in the restaurant business. On that basis, the Tribunal cannot be satisfied, despite the applicant’s evidence, that the course will add any real value to her future, that would be outweighed by the financial cost of completing the course.
The Tribunal finds that the applicant has not objectively demonstrated that her current course, if she completes it, would provide her with sufficient skills, knowledge and qualifications to successfully to embark upon the opening and running of a business in China or elsewhere. The Tribunal is therefore not satisfied on the evidence that the proposed further vocational course of study the applicant is currently undertaking is likely to increase her employment prospects and remuneration in her own country.
Further, the Tribunal finds that the applicant’s conduct in having enrolled in many courses as outlined above since 2014 amounts to conduct consistent with wanting to stay in Australia permanently, rather than study on a temporary basis.
The Tribunal has had regard to the applicant’s immigration history. The Tribunal makes no findings regarding the applicant’s previous visa history in Australia. There is no evidence before the Tribunal of a failure to comply with visa conditions for other countries. The Applicant has travelled to Singapore, UK, South Korea, New Zealand and Indonesia for holidays in the past without any visa issues.
As outlined above, the applicant has been onshore since 2014, has returned home to China several times for health issues, but keeps returning to Australia purportedly to undertake studies she has a proven track record of not completing. On that basis, the Tribunal is satisfied that the applicant is using the student visa program primarily for maintaining ongoing residence and has taken the courses set out above primarily to give effect to that purpose.
The applicant is not a minor and on that basis, cl. 15 and 16 of MD69 are not relevant.
Having taken the department’s file and the applicant’s evidence into account, the Tribunal finds there are no other matters relevant to its assessment of the applicant’s genuine intention to temporarily stay in Australia.
The Tribunal has considered all of the information provided by the applicant in support of her application. On balance, the Tribunal is not satisfied that the information the applicant has provided demonstrates that she is a genuine temporary entrant.
On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).
Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Vanessa Plain
Member

Attachment – Direction No.69
DIRECTION NUMBER 69 – ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS
(Section 499)
I, PETER DUTTON, Minister for Immigration and Border Protection give this Direction under section 499 of the Migration Act 1958 (the Act).
Dated: 18 April 2016
Peter Dutton

Minister for Immigration and Border Protection
Note: Section 499(1) of the Act empowers the Minister to give a written direction to a person or body having functions or powers under the Act if the directions are about the performance of those functions; or the exercise of those powers. Under section 499(2) of the Act, the direction must not be inconsistent with the Act or the Migration Regulations 1994. Under section 499(2A) of the Act, the person or body must comply with the Direction.
Part 1 of Direction No. 69 - Preliminary
Name of Direction
This Direction is Direction No. 69 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.
It may be cited as Direction No. 69.
Commencement
This Direction commences on 1 July 2016.
Interpretation
Act means the Migration Act 1958.
Genuine temporary entrant means a person who satisfies the genuine temporary entrant criterion for Student visa or Student Guardian visa applications.
Genuine temporary entrant criterion refers to clause 500.212(a), 500.312(a) and 590.215(a) at Schedule 2 to the Regulations.
Home country has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.
Regulations mean the Migration Regulations 1994.
Relative has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.
Spouse has the same meaning as the definition of the term in section 5F of the Act.
Student visa means a Subclass 500 (Student) visa
Student Guardian visa means a Subclass 590 (Student Guardian) visa.
Application
This Direction applies to delegates performing functions or exercising powers under section 65 of the Act in relation to assessing an applicant’s temporary entrant criterion for Student visa applications in Schedule 2 to the Regulations.
This Direction also applies to members of the Administrative Appeals Tribunal who review the decisions of primary decision-makers in relation to a Student visa or a Student Guardian visa application.
The genuine temporary entrant criterion must be satisfied by all applicants who make an application for either a Student visa seeking to satisfy the primary criteria for a Student Guardian visa.
Preamble
The Australian Government operates a student visa programme that enables people who are not Australian citizens or Australian permanent residents to undertake study in Australia. A person who wants to undertake a course of study under the student visa programme must obtain a student visa before they can commence a course of study in Australia. A successful applicant must be both a genuine temporary entrant and a genuine student.
An applicant who is a genuine temporary entrant will have circumstances that support a genuine intention to temporarily enter and remain in Australia, notwithstanding the potential for this intention to change over time to an intention to utilise lawful means to remain in Australia for an extended period of time or permanently.
The genuine temporary entrant criterion for Student visa applications requires the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:
a.the applicant’s circumstances; and
b.the applicant’s immigration history; and
c.if the applicant is a minor — the intentions of a parent, legal guardian or spouse of the applicant; and
d.any other relevant matter.
This Direction provides guidance to decision makers on what factors require consideration when assessing the above paragraphs a to d, to determine whether the applicant genuinely intends to stay in Australia temporarily.
Decision makers must take a reasonable and balanced approach between the need to make a timely decision on a Student visa or Student Guardian visa application and the need to identify those applicants who, at time of decision, do not genuinely intend to stay in Australia temporarily
Part 2 of Direction No. 69 - Directions
Assessing the genuine temporary entrant criterion
1.Decision makers should not use the factors specified in this Direction as a checklist. The listed factors are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
2.Decision makers should assess whether, on balance, the genuine temporary entrant criterion is satisfied, by:
a.considering the applicant against all factors specified in this Direction; and
b.considering any other relevant information provided by the applicant (or information otherwise available to the decision maker).
3.Decision makers may request additional information and/or further evidence from the applicant to demonstrate that they are a genuine temporary entrant, where closer scrutiny of the applicant's circumstances is considered appropriate.
4.Circumstances where further scrutiny may be appropriate include but are not limited to:
a.information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department indicates the need for further scrutiny;
b.the applicant or a relative of the applicant has an immigration history of reasonable concern;
c.the applicant intends to study in a field unrelated to their previous studies or employment; and
d.apparent inconsistencies in information provided by the applicant in their Student visa application.
5.An application for a Student visa or a Student Guardian visa should be refused if, after weighing up the applicant’s circumstances, immigration history and any other relevant matter, the decision maker is not satisfied that the applicant genuinely intends a temporary stay in Australia.
The applicant’s circumstances
6.Decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.
7.For primary applicants of Subclass 500 Student visas, decision makers should have regard to the value of the course to the applicant’s future.
8.Weight should be placed on an applicant’s circumstances that indicate that the Student visa or Student Guardian visa is intended primarily for maintaining residence in Australia.
The applicant’s circumstances in their home country
9.When considering the applicant’s circumstances in their home country, decision makers should have regard to the following factors:
a.whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant;
b.the extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to their home country;
c.economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant’s circumstances relative to the home country and to Australia;
d.military service commitments that would present as a significant incentive for the applicant not to return to their home country; and
e.political and civil unrest in the applicant’s home country. This includes situations of a nature that may induce the applicant to apply for a Student visa or Student Guardian visa as means of obtaining entry to Australia for the purpose of remaining indefinitely. Decision makers should be aware of the changing circumstances in the applicant’s home country and the influence these may have on an applicant’s motivations for applying for a Student visa or a Student Guardian visa.
10.Decision makers may have regard to the applicant’s circumstances in their home country relative to the circumstances of others in that country.
The applicant’s potential circumstances in Australia
11.In considering the applicant’s potential circumstances in Australia, decision makers should have regard to the following factors:
a.The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;
b.evidence that the student visa programme is being used to circumvent the intentions of the migration programme;
c.whether the Student visa or Student Guardian visa is being used to maintain ongoing residence;
dwhether the primary and secondary applicant(s) have entered into a relationship of concern for a successful Student visa outcome. Where a decision maker determines that an applicant and dependant have contrived their relationship for a successful Student visa outcomes, the decision maker may find that both applicants do not satisfy the genuine temporary entrant criterion; and
e.the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.
Value of the course to the applicant’s future
12.Decision makers should have regard to the following factors when considering the value of the course to the applicant’s future:
a.whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and
b.relevance of the course to the student’s past or proposed future employment either in their home country or a third country; and
c.remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.
The applicant's immigration history
13.An applicant’s immigration history refers both to their visa and travel history.
14.When considering the applicant’s immigration history, decision makers should have regard to the following factors:
a.Previous visa applications for Australia or other countries, including:
i.if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which the application(s) were refused; and
ii.if the applicant has previously applied for visa(s) to other countries, whether the applicant was refused a visa and the circumstances that led to visa refusal.
b.Previous travels to Australia or other countries, including:
i.if the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control;
ii.whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;
iii.the amount of time the applicant has spent in Australia and whether the Student visa or Student Guardian visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification; and
iv.if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country and the circumstances around any non-compliance
If the applicant is a minor— the intentions of a parent, legal guardian or spouse of the applicant
15.If the primary or secondary applicant for a Subclass 500 Student visa is a minor, decision makers should have regard to the intentions of a parent, legal guardian or spouse of the applicant.
Any other relevant matters
16.Decision makers should also have regard to any other relevant information provided by the applicant (or information otherwise available to the decision maker) when assessing the applicant’s intention to temporarily stay in Australia. This includes information that may be either beneficial or unfavourable to the applicant.

[2019] AATA 1833

4 June 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction